In Re: K.S.D., Appeal of: K.S. & B.K.S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: K.S.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.A.S. AND B.K.S. :
:
:
:
:
: No. 899 WDA 2020
Appeal from the Order Entered July 28, 2020
In the Court of Common Pleas of Somerset County Orphans' Court at
No(s): 15 Adoption 2019
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED: JUNE 2, 2021
K.A.S. and B.A.S. (Maternal Grandparents) appeal from the order
denying their petitions to involuntarily terminate the parental rights of K.S.D.
(Mother) and J.K. (Putative Father) to K.S.D. (Child), born in July 2017.1 We
affirm.
Mother resided with Maternal Grandparents from the time she was
approximately six months pregnant with Child to shortly following Child’s
birth. N.T., 7/23/20, at 16-17. Maternal Grandmother testified that Mother
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1 Maternal Grandparents additionally filed a petition seeking to terminate the
parental rights of Unknown Father. Pet. for Termination of Parental Rights,
1/22/20. The orphans’ court, however, declined to rule on this petition. N.T.,
7/23/20, at 215, and entered a single order denying the petitions to terminate
Mother’s and Putative Father’s parental rights. Neither Mother nor Putative
Father filed a brief in this appeal.
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did not help care for Child and her basic needs and was often not home. Id.
at 21-22, 27-28. Maternal Grandmother stated:
I mean she would be -- she was supposed to be living there, but
you never knew where she was. We would go weeks; we could
go months; and then in the middle of the night, I would wake up
in the morning and there is always a note on my stove for money,
for cigarette money. It was constant. We didn’t know where she
was.
Id. at 21-22. Maternal Grandfather confirmed Maternal Grandmother’s
testimony. Id. at 88.
Moreover, Child was hospitalized from the time she was one-and-a-half
months old until two-and-a-half months old.2 Id. at 20-21. Maternal
Grandmother reported that Mother did not participate in Child’s care while
hospitalized. Id. at 26.
Mother subsequently left Maternal Grandparents’ home in January 2018
with Child. Id. at 28, 88. Maternal Grandmother observed that Mother did
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2 According to Maternal Grandmother, Child was diagnosed with numerous
medical conditions, including: (1) breathing issues; (2) aortapexy, described
as a bent trachea with the aorta wrapped around it; (3) tracheomalacia; (4)
bronchomalacia; seizures with concerns of a brain tumor; (5) ear issues; and
(6) tongue issues. Child has undergone numerous surgeries, including open
heart surgery, and “scopes.” N.T., 7/23/20, at 19-22, 24, 52. Child was also
scheduled to undergo biopsies of her stomach and bowels. Id. at 22. As a
result, Child requires numerous medications, as well as physical therapy to
loosen and release mucus from her chest, nebulizer treatments, and “pudding-
thick liquids.” Id. at 23, 51-52.
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not have the ability to appropriately care for Child.3 Id. at 29. Maternal
Grandparents filed an emergency petition in custody on February 21, 2018,
fearing for Child’s safety due to Mother’s drug use, Child’s medical issues, and
Mother’s inability to appropriately care for Child. Id. at 29-30, 88; Maternal
Grandparents’ Ex. A. Maternal Grandparents received supervised visitation
every other Saturday at 1:00 p.m. at McDonald’s. Id. at 35-36, 88.
Mother then returned to Maternal Grandparents’ home and moved back
in around Memorial Day. Id. at 31, 88. Maternal Grandmother expressed
that Mother continued to fail to help with Child’s care and did not provide
financial assistance. Id. at 32. Maternal Grandmother indicated that she took
Child to work with her and then to daycare because Mother was never home
and could never be found. Id. at 32-33.
After evicting Mother from the home due to drug use, Maternal
Grandparents again filed for custody in September 2018. Id. at 34, 38-39,
41-42, 88. By an order of September 26, 2018, the court granted Maternal
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3 Notably, Maternal Grandmother was a certified nursing assistant (CNA) and,
since 2004, has been a licensed practical nurse (LPN) with skills caring for
special needs children and dealing with tracheotomies and ventilators. Id. at
23. Maternal Grandmother indicated that her background is very helpful in
caring for Child. Id. Maternal Grandmother also testified that after Mother
left the home in January 2018, Mother did not take Child to medical
appointments. Maternal Grandmother observed that Child lost weight and
was wheezy when she saw her during that time. Id. at 37.
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Grandparents sole legal and physical custody of Child.4 Id.; Maternal
Grandparents’ Ex. C.
Maternal Grandparents commenced the instant termination of parental
rights proceeding by filing a petition to terminate Mother’s parental rights on
August 29, 2019. Maternal Grandparents alleged that Mother “evidenced a
settled purpose of relinquishing parental claims to [Child] and had failed to
perform parental duties” and that termination of her parental rights would
best serve Child’s needs and welfare. Pet. for Termination of Parental Rights,
8/29/19, at ¶¶ 8, 9. Maternal Grandparents thereafter filed petitions to
terminate the parental rights of Putative Father, J.K., and an Unknown Father
on January 22, 2020.5 As to Putative Father, Maternal Grandparents asserted
that he also “evidenced a settled purpose of relinquishing parental claims to
[Child] and had failed to perform parental duties” and that termination of his
parental rights would best serve Child’s needs and welfare. Pet. for
Termination of Parental Rights of Putative Father, 1/22/20, at ¶¶ 7, 8. As to
Unknown Father, Maternal Grandparents sought termination citing Section
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4 Mother did not appear at the September 2018 hearing on Maternal
Grandparents’ petition for custody of Child. The court permitted Mother to file
a petition for modification. Maternal Grandparents’ Ex. C.
5 While Putative Father acknowledged paternity of Child, Maternal
Grandparents allege there are doubts as to whether he was Child’s biological
parent. Putative Father did not undergo paternity testing by the time of the
hearing on Maternal Grandparent’s petition to terminate his parental rights.
The orphans’ court granted leave to publish notice of the filing of the petition
against Unknown Father.
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2511(a)(1), and (2). Pet. for Termination of Parental Rights of Unknown
Father, 1/22/20, at ¶¶ 8, 9.
After several continuances, the orphans’ court held a hearing on
Maternal Grandparents’ petitions on July 23, 2020. Maternal Grandparents
and Mother were present and represented by counsel. Putative Father was
neither present nor represented by counsel. No other individual appeared
claiming paternity as father. Child was represented by a guardian ad litem
(GAL)/legal counsel.6 Maternal Grandmother, Maternal Grandfather, and
Mother all testified on their own behalf.
At the conclusion of the hearing, the orphans’ court denied Maternal
Grandparents’ petitions as to Mother and Putative Father, which the court
memorialized by written order dated July 23, 2020, and entered July 28,
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6 The orphans’ court initially appointed Kimberly Hindman, Esq. to represent
Child in the termination proceeding. At the hearing, given the lack of conflict
between Child’s best interests and legal interests, the orphans’ court
appointed Attorney Hindman as GAL. N.T., 7/23/20, at 9-11. The court
stated, in part:
Well, let me just say the statute requires that [Child] have legal
counsel. It does not require the child to have a [GAL] in an
involuntary termination proceeding. However, if the child’s legal
interests conflict with the child’s best interests, then it would be
necessary to have both a legal – legal counsel and a [GAL]. . . .
Just let me enter an order appointing you as both. You’re already
legal counsel, but we’ll appoint you also as [GAL] given that it
does not appear that there’s any conflict between [Child]’s legal
interests and best interests.
Id. at 9-10 (some formatting altered). At the close of the hearing, Child’s
GAL/legal counsel argued that termination of Mother’s parental rights was in
Child’s best interests. Id. at 204.
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2020.7 The court declined to address the petition seeking termination of the
parental rights of Unknown Father. N.T., 7/23/20, at 215.
On August 21, 2020, Maternal Grandparents, through counsel, filed a
timely notice of appeal, as well as concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Thereafter, on
September 1, 2020, the court filed a Rule 1925(a)(2)(ii) opinion referring to
its reasoning placed on the record.
On appeal, Maternal Grandparents raise six issues, which we have
reordered as follows:
1. Whether the [orphans’] court erred in declining to terminate
the parental rights of Mother?
2. Whether the [orphans’] court erred in not finding by clear and
convincing evidence that Mother had evidenced a settled
purpose of relinquishing her parental rights or that she had
failed or refused to perform parental duties for a period in
excess of six (6) months?
3. Whether the [orphans’] court erred in declining to terminate
the parental rights of Putative Father[]?
4. Whether the [orphans’] court erred in not finding by clear and
convincing evidence that Putative Father[] had evidenced a
settled purpose of relinquishing his parental rights or that he
had failed or refused to perform parental duties for a period in
excess of six (6) months?
5. Whether the [orphans’] court erred in declining to terminate
the parental rights of the Unknown Father?
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7 Although Maternal Grandparents’ petitions to terminate Mother’s and
Putative Father’s parental rights did not cite a specific subsection of Section
2511(a), the orphans’ court denied the petitions under Section 2511(a)(1)
and (2). See N.T., 7/23/20, at 215.
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6. Whether the [orphans’] court erred in not finding by clear and
convincing evidence that Unknown Father had evidenced a
settled purpose of relinquishing his parental rights or that he
had failed or refused to perform parental duties for a period in
excess of six (6) months?
Maternal Grandparents’ Brief at 4-5 (some formatting altered).8
We summarize Maternal Grandparents first two arguments together.
Maternal Grandparents assert that the orphans’ court erred in failing to find
grounds for termination of Mother’s parental rights pursuant to Section
2511(a)(1) because the record establishes that Mother failed to perform
parental duties. Maternal Grandparents’ Brief at 15. Maternal Grandparents
note that Mother failed to seek and pursue custodial time through the custody
matter. Id. They further point to Mother’s failure to maintain contact and
communication. Id. Maternal Grandparents state, “[Mother] has failed to
utilize all available resources to preserve the parental relationship as from
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8 While Maternal Grandparents make a broad sufficiency of the evidence
argument, we find that they preserved a challenge as to Section 2511(a)(1)
only. Maternal Grandparents failed to include discussion of subsections (a)(2)
and (b) in their brief, such that they failed to preserve, and therefore waived,
any challenge with regard to subsections (a)(2) and (b). See In re W.H., 25
A.3d 330, 339 n.3 (Pa. Super. 2011) (noting that “where an appellate brief
fails to provide any discussion of a claim with citation to relevant authority or
fails to develop the issue in any other meaningful fashion capable of review,
that claim is waived” (citation omitted)); see also In re M.Z.T.M.W., 163
A.3d 462, 465-66 (Pa. Super. 2017). Even if Maternal Grandparents did not
waive their arguments under subsection (b), however, we need not engage in
the subsection (b) analysis considering our discussion herein. See In re P.Z.,
113 A.3d 840, 850 (Pa. Super. 2015) (stating that only if the court determines
that the parent’s conduct warrants termination of his or her parental rights,
does the orphans’ court and the reviewing court engage in the second part of
the analysis pursuant to Section 2511(b)).
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September 17, 2018, through early July 23, 2020, [Mother] took no
documented action or exerted any efforts to maintain contact with [C]hild
other than sporadic text requests to see [C]hild.” Id.Maternal Grandparents also emphasize Mother’s closing argument at the
hearing, during which Mother’s counsel suggested that Maternal Grandparents
maintain custody of Child under the current custody order with the potential
for Mother to seek a modification if her situation improves in the future. Id.
at 16. Maternal Grandparents note the speculative nature of relying on Mother
improving in the future. They further highlight that Mother’s other child was
removed from her custody by CYS, reflecting Mother’s inability to provide for
Child’s needs. Id. at 16-17.
Likewise, in their third and fourth claims, Maternal Grandparents argue
that Putative Father evidenced a settled purpose of relinquishing his parental
claim to Child where he declined paternity testing and failed to appear for the
termination proceeding, despite having notice of the hearing. Id. at 17. They
further contend that he lacks skills to provide for Child’s needs. Id. at 17-18.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
The standard of review in termination of parental rights cases
requires appellate courts “to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
2012). “If the factual findings are supported, appellate courts
review to determine if the trial court made an error of law or
abused its discretion.” Id. “[A] decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill will.” Id. The
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trial court’s decision, however, should not be reversed merely
because the record would support a different result. Id. at 827.
We have previously emphasized our deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “[T]he trial court is free to believe
all, part, or none of the evidence presented, and is likewise free to make all
credibility determinations and resolve conflicts in the evidence.” In re Q.R.D.,
214 A.3d 233, 239 (Pa. Super. 2019) (citation omitted). “If competent
evidence supports the trial court’s findings, we will affirm even if the record
could also support the opposite result.” In re B.J.Z., 207 A.3d 914, 921 (Pa.
Super. 2019) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, and requires a bifurcated analysis of
the grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under Section 2511, the [trial]
court must engage in a bifurcated process prior to terminating
parental rights. Initially, the focus is on the conduct of the parent.
The party seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory grounds
for termination delineated in Section 2511(a). Only if the [trial]
court determines that the parent’s conduct warrants termination
of his or her parental rights does the [trial] court engage in the
second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
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B.J.Z., 207 A.3d at 921 (citation omitted). We have defined clear and
convincing evidence as that which is “so clear, direct, weighty, and convincing
as to enable the trier[-]of[-]fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.” In re Z.P., 994 A.2d
1108, 1116 (Pa. Super. 2010) (citation omitted).
Here, the orphans’ court denied Maternal Grandparents’ petitions to
terminate the parental rights of Mother and Putative Father based on Section
2511(a)(1) and (2). As discussed above, Maternal Grandparents failed to
raise challenges to subsection (a)(2). Accordingly, we focus on their
arguments under subsection (a)(1).
Section 2511(a)(1) provides:
(a) General rule.—The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
(1) The parent by conduct continuing for a period of at least six
months immediately preceding the filing of the petition either
has evidenced a settled purpose of relinquishing parental claim
to a child or has refused or failed to perform parental duties.
23 Pa.C.S. § 2511(a)(1).
“A court may terminate parental rights under Section 2511(a)(1) where
the parent demonstrates a settled purpose to relinquish parental claim to a
child or fails to perform parental duties for at least the six months prior to the
filing of the termination petition.” Z.P., 994 A.2d at 1117 (emphasis in
original). As it relates to the six-month period prior to the filing of the petition,
this Court has instructed:
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[I]t is the six months immediately preceding the filing of the
petition that is most critical to our analysis. However, the trial
court must consider the whole history of a given case and not
mechanically apply the six-month statutory provisions, but
instead consider the individual circumstances of each case.
In re D.J.S., 737 A.2d 283, 286 (Pa. Super. 1999) (citations omitted). These
principles require the orphans’ court to “examine the individual circumstances
of each case and consider all explanations offered by the parent facing
termination of his or her parental rights, to determine if the evidence, in light
of the totality of the circumstances, clearly warrants the involuntary
termination.” In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citation
omitted).
Our Supreme Court has held that
[o]nce the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights, the
court must engage in three lines of inquiry: (1) the parent’s
explanation for his or her conduct; (2) the post-abandonment
contact between parent and child; and (3) consideration of the
effect of termination of parental rights on the child pursuant to
Section 2511(b).
Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)
(citation omitted); accord In re J.T.M., 193 A.3d 403, 409 (Pa. Super. 2018).
Instantly, in denying Maternal Grandparents’ petitions to terminate
Mother’s and Putative Father’s parental rights pursuant to Section 2511(a)(1),
the orphans’ court reasoned as follows:
All right, I have considered the testimony and evidence presented
today. There has been an awful lot of conflicting testimony, which
is typical in these kinds of cases. That requires me to weigh and
assess the credibility of the witnesses.
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The statute, being 23 Purdon’s Section 2511(a) requires that the
[c]ourt find by clear and convincing evidence that there are
grounds for involuntary termination of parental rights. In this
case, I believe the sections that arguably would be applicable
would be Section 2511(a)(1) and Section 2511(a)(2).
Section 2511(a)(1) requires that the [c]ourt find, again by clear
and convincing evidence, that the parent, by conduct continuing
for a period of at least six months immediately preceding the filing
of the petition, either has evidenced a settled purpose of
relinquishing parental claims to a child or has refused or failed to
perform parental duties.
* * *
It’s clear that [M]aternal [G]randparents have devoted their lives
to [C]hild’s care and upbringing, and I commend them for that,
and it certainly has been a valiant effort given [C]hild’s medical
needs and special needs. However, I can’t find clear and
convincing evidence that [M]other has engaged in conduct that
would fit in Section 2511(a)(1) . . .; and, again, the key is that it
has to be clear and convincing evidence. It’s one of the most strict
standards under the law; and unless the [c]ourt can find that
evidence clearly and convincingly, it is not within my authority to
terminate someone’s parental rights.
And I have to tell you that is one of the most important rights that
a person can possess is the right to be a parent.
What concerns me is that there clearly is not a good relationship
here between [Ma]ternal [G]randmother and [M]other. And I’m
not pointing any fingers to who has caused that to occur, but what
is clear to me is that[,] although [M]other has not been a stellar
mother; she has not been there every day for her daughter; there
is clearly evidence that she has, on many occasions, attempted to
have contact with [Child]. And it appears that those requests
were denied or ignored on many occasions.
That causes me to not be able to find clearly and convincingly that
it’s appropriate to terminate [M]other’s rights at this time.
As I stated earlier, there’s always conflicting evidence and varying
testimony, but I find it somewhat concerning that there was
testimony by [M]aternal [G]randmother that there was a
significant period of time where [M]other didn’t have any contact
with [C]hild or didn’t even hold [C]hild; but yet, there’s
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photographs that obviously contradict that. That prevents me
from being able to find clear and convincing evidence that I should
terminate [[M]other’s parental rights.
Again, I stress that, ma’am [to Mother], you’re -- you’re not
getting Parent of the Year clearly. You have a lot of work to do if
you’re ever going to rekindle your relationship with your daughter
and your mother, but I don’t find that we are at the point where I
can clearly and convincingly say that her parental rights should be
terminated under Section 2511(a)(1) . . . .
I don’t find the settled purpose that’s necessary for me to find that
[M]other has abandoned her parental rights or has given up those
parental rights.
Has she refused or failed to perform parental duties? Certainly,
on occasion, but not to the level where her parental rights can be
involuntarily terminated by this [c]ourt.
Have there been periods where [M]other has neglected or refused
to be a parent or provide care to [C]hild? Yes, there are; but,
again, I don’t enter an [o]rder today terminating her parental
rights.
Again, I commend [M]aternal [G]randparents for all that they are
doing for [C]hild, and it is a noble effort and, clearly, it’s what is
in the best interests of [C]hild; but the more important question
is whether or not there exists by clear and convincing evidence
grounds -- statutory grounds for involuntary termination; and
based on the record before me, I don’t find that today.
So for that reason, I am denying the petition as it applies to
[M]other.
With respect to [Putative Father], again, the [c]ourt must find by
clear and convincing evidence his settled purpose to not be a
father to [C]hild, and I think a strong case can be made out for
that; but, again, we don’t have a situation where he’s been absent
from child’s life, haven’t made an effort to see the child. He’s
provided very minimal financial assistance, but it doesn’t boil
down to dollars and cents.
What I will say is this: Based on the testimony that [Putative
Father] doesn’t oppose the petition, I think the more appropriate
method would be for him to voluntarily relinquish his parental
rights, if that is what he intends to do. But based on the record
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that he has continuing one-time-per-week contact with the child;
he’s provided some financial support; he has still been part of the
child’s life, again, I don’t find clearly and convincingly that I
shouldn’t involuntarily terminate his parental rights. If that’s what
he desires, he can file a [p]etition to [v]oluntarily [r]elinquish
those rights, and I will certainly consider that, but I don’t find
sufficient evidence today to involuntarily terminate his rights.
At this point in time, with the allegations that he is the putative
father, I’m not going to rule with respect to [U]nknown [F]ather
because what I think we clearly need is a paternity test to rule
out, one way or the other, whether [Putative Father] is or isn’t the
father. But we clearly have evidence before the [c]ourt that he
is, and I don’t have clear evidence that he isn’t. So for this point
in time, I’m treating him as the putative father.
Again, if he doesn’t want that responsibility, he can have a
paternity test taken to rule out conclusively whether he is or isn’t
the father, or he can file a [p]etition to [v]oluntarily [r]elinquish
his [p]arental [r]ights.
N.T., 7/23/20, at 210-15.
Upon review, the record supports the findings of the orphans’ court,
including its credibility determinations. The orphans’ court determined that
Mother testified credibly in that she made numerous contacts to request visits
with Child that Maternal Grandmother denied or ignored. See N.T., 7/23/20,
at 106-14, 116-25, 127-71, 173, 179, 201-02; see also Mother’s Exs. 1-4.
Mother further stated that she provided some gifts and supplies. Id. at 140-
41, 162, 170, 195-97; see also Mother’s Ex. 4. Similarly, the orphans’ court
heard credible evidence that Putative Father maintained physical contact,
visiting Child approximately once per week, and contributed some financial
assistance to Maternal Grandparents, although minimal. See N.T., 7/23/20,
at 93, 96-97. Accordingly, the record supports the orphans’ court’s conclusion
that the termination of the parental rights of Mother and Putative Father was
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not warranted pursuant to Section 2511(a)(1). Upon our review, we find no
abuse of discretion, and therefore, we must defer to the orphans’ court and
will not disturb its findings.9 See T.S.M., 71 A.3d at 267 (citing S.P., 47 A.3d
at 826); R.J.T., 9 A.3d at 1190; see also Q.R.D., 214 A.3d at 239; B.J.Z.,
207 A.3d at 921.
In their final two claims, Maternal Grandparents argue that they
established grounds for terminating the parental rights of any Unknown
Father. These arguments lack merit because the orphans’ court declined to
render a decision without further proof that Putative Father was not Child’s
father.
Order affirmed.
Judge McLaughlin joins the memorandum.
Judge Bowes files a dissenting memorandum.
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9 As our Supreme Court has observed:
[U]nlike trial courts, appellate courts are not equipped to make
the fact-specific determinations on a cold record, where the trial
judges are observing the parties during the relevant hearing and
often presiding over numerous other hearings regarding the child
and parents. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the record
and the court’s legal conclusions are not the result of an error of
law or an abuse of discretion.
S.P., 47 A.3d at 826-27 (citations omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2021
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